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The Edifice of the Right to Privacy in India

Vidit Goyal talks about the right to privacy in India, in this short essay.

“They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
― Benjamin Franklin, Memoirs of the Life & Writings of Benjamin Franklin

“To be left alone is the most precious thing one can ask of the modern world.”
― Anthony Burgess, Homage to Qwert Yuiop: Essays

In society, every person has three lives – public, private and secret. The public life of a person is that life in which he is in a ‘black and white’ situation in front the people. The secret life is the life which he lives secretly behind four walls but still some of his best buddies know about his deep secrets. But there is one more type of life in which a person does not want any kind of breach on anybody’s behalf. Sometimes he needs to be ‘left alone’ and that right of the person is called the Right to Privacy.

This right of a person has been recognized as a basic human right. The Universal Declaration of Human Rights confers upon every human being the right to privacy under Article 12 which says “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

In India, this Right to Privacy has not been provided explicitly in the Constitution but the judiciary has, in many instances, derived it from the right to life and liberty under Article 21. However, in some cases courts have also not regarded it as a fundamental right of the citizens. This question came before the court in the recent case of Puttaswamy V. Union of India[i], where the collection of bio-metric data for the Aadhaar card scheme was questioned, citing breach of right to privacy. But in this case, the court is yet to decide whether right to privacy emanates from Part III of the Constitution or not.

Article 21 of the Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. It was held, after careful analysis, in the case of R. Rajagopal V. State of Tamil Nadu[ii], that the right to privacy is implicit in Article 21. “It is the right to be left alone”. This topic was raised for the very first time, in the case of Kharak Singh v. State of UP[iii], where Justice Subba Rao, in his dissenting judgement, held that right to privacy “is an essential ingredient of personal liberty” and that the right to personal liberty is “a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions are directly imposed or indirectly brought about by calculated measures”. In the case of Govind V. State of Madhya Pradesh[iv], the Supreme Court, after taking into account the decision in Kharak Singh’s case[v], held that “Many of the fundamental rights of citizens can be described as contributing to the right to privacy”. This right to privacy also requires the state not to make public, any private information about any individual which would violate his or her privacy.[vi]

The right to live with dignity has also been recognized as an aspect of the right to privacy and as part of the right to personal liberty under Article 21. In the case of Charu Khurana and Ors. V. Union of India[vii], it has been ruled that “Dignity is the quintessential quality of personality, for it is a highly cherished value. Thus perceived, the right to honour, dignity and reputation are the basic constituents of the right mentioned under Article 21. The right to dignity has since, been declared by the Supreme Court to be a non-negotiable constitutional right flowing from the spirit of the Constitution and the explicitly guaranteed right to life and personal liberty under Article 21. But there are also many cases where it was held that the right to privacy is not a fundamental right. In the case of Kharak Singh V. State of Uttar Pradesh & Ors.[viii], it was held that “The right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.” The same stand was taken by the Supreme Court in the case of M.P. Sharma V. Satish Chandra.[ix].

Subsequently, courts have changed their views and held that though the right to privacy is a fundamental right, some reasonable restrictions can be placed by the state. Publication of any matter concerning the private life of a person without his or her consent may violate his or her right to privacy except where the publication is based on public or court records for the purpose of the right to know.[x] In the case of Ms. X V. Mr. Z[xi], the Supreme Court held that “The right to privacy, though a fundamental right enshrined under Article 21 forming part of the right to life, is not absolute. When the right to privacy has become a part of a public document, in that case, the person cannot insist that such DNA test would infringe his/her right to privacy.” So, the collection of a DNA sample as a matter of public record for public good cannot be held in violation of Article 21. If at all there is any violation of one’s privacy, it is only because public interest is prioritized. In competing rights flowing from Article 21, balancing of interest is required. This was stated in the case of Avishek Goenka V. Union of India[xii], wherein the safety of the general public vis-à-vis individual privacy was in question. The safety of society outweighs individual privacy.[xiii] In the case of People’s Union for Civil Liberties V. Union of India,[xiv] (popularly known as the ‘Telephone Tapping’ case), the Supreme Court held that while tapping a phone call is a serious invasion of one’s privacy, it would not be so if done in public interest or in case of public emergency.

Thus, the present structure or edifice of the right to privacy can be summarized as follows:

“The citizen has the right to safeguard the privacy of his own and his family’s, marriage, procreation, motherhood, child bearing and education among others. No one can publish anything concerning the above matters without his or her consent whether truthful or otherwise and whether laudatory or critical.[xv] Exception can be made if a person voluntarily thrusts himself or herself into controversy or any of these matters becomes part of public record or relates to an action of a public official concerning the discharge of his or her official duty.”

But this structure of the right to privacy as a fundamental right still does not make clear as to whether the state, just for a public record, can compel all the citizens to submit their personal data, including their bio-metric information, or not. The Supreme Court is taking much time to decide on this substantial question but for the time being, no person can be compelled to submit his or her name under the much debated Aadhaar card scheme.